Promote the development of national copyright guidelines or codes of professional practices for various uses of works by museums

A - Issue at stake

  • Currently, whether a copyrighted work may be used or not is up to the rights holder’s decision (unless an exception applies), and therefore may be negotiated between rights holder and potential user. However, countries regulate many aspects by compulsory law, to ensure both the rights holder’s rights and society’s interest in the use of works. This balance is often precarious, and when copyright law is being revised, such process often ends up being a very public and controversial process with both sides trying to assert themselves.
  • Museums find themselves in the middle and are important links and mediators between artists on the one hand and the general public on the other. As explained above, while it is generally accepted that museums may use protected works for some causes due to mandatory exceptions and limitations (for instance, they may be allowed to use reproductions for exhibition catalogues without licensing them or under certain jurisdictions for archival purposes), many routine activities of museums are not covered by exceptions.
  • This is especially true for museums’ commercial enterprises. If museums want to use protected works for these purposes, they need the rights holder’s approval and have to pay license fees. These fees may be negotiated between museums and rights holders. If rights holders are represented by a CMO, prices for the use of protected works are normally determined by general tariffs.
  • Whereas this situation is logical in cases of commercial and merchandizing uses falling outside of the scope of a museum’s core functions as generally defined by ICOM (for example producing items for the museum shops or for promoting an exhibition), museums and rights holders could benefit from a “Code of professional practices” regulating commercial aspects attached to museums’ public interest missions, such as compensation for exhibition rights and preservation costs of digitized works. This would help both sides in that museums would be able to budget more clearly, and artists – especially newer ones with less negotiating experience and those not represented by CMOs – would benefit from some guidance while exchanging with museums.1
  • Because of financial shortage, museums may have to cut down on uses of protected works, especially works of visual art. As a consequence, living artists and artists whose works are still protected are also underrepresented in some museum exhibitions. Museums may even wait until copyright protection ceases before they organize a retrospective on order to forego license payments and author’s or author’s successor’s approval.2 This is misrepresentative for artists’ significance in art history and, given the importance of a digital presence nowadays, detrimental to their reputation, their scientific exploration, their reception by the general public and their earning potential.

B - Clarifications

  • A common understanding among all stakeholders – including multi-stakeholder international organizations, such as WIPO or UNESCO – of acceptable terms of use by museums should be developed.
  • Such common understanding may be drafted as guidelines and should cover non-commercial purposes as well as commercial aspects attached to museums’ public interest missions, such as compensation for exhibition rights and preservation costs of digitized works. In addition:
    • They should be drafted in an easy-to follow-manner and need to take into account every stage of use, i.e. digitization as well as dissemination;
    • They could include precise technical requirements (for example, file size);
    • They need to be compatible with the generally accepted ICOM Code of Ethics3.
  • They should also provide legal security for museums and their personnel: if the guidelines are followed diligently by museum personnel, they should benefit from a safe harbour protecting against abusive litigation and/or alleviating liability (see for example the due diligence steps proposed for the research of copyright, Proposal 8).
  • Commonly adopted guidelines and good practices are easier to live up to and implement than imposed norms: they may be more easily adapted progressively as technologies develop than codified law and they offer greater transparency and clarity to the museums (as long as such guidelines are not contrary to the law). All parties involved should take into account that museums play a unique role as intermediaries between rights holders and users.